Friday, September 23, 2011

Court: unwanted sex does not necessarily equal rape

In People v. Sojka, 2011 Cal.App. LEXIS 733 (2011), a case decided in June but, apparently, not reported by the news media, a California appellate court reversed John F. Sojka’s conviction for attempted rape by force. The court's opinion is "must reading" for anyone who follows these issues because it illustrates a fundamental and crucial principle: there is no rape if the defendant reasonably believed the woman consented.
Mr. Sojka met his accuser early one evening in a bar. The two struck up a conversation and Sojka bought her a beer. One beer led to another, and the two left and went to another bar where they socialized with other patrons, continued drinking, and played pool until about midnight. Over the course of the evening Sojka and the accuser were mildly amorous with one another. They left the bar and Sojka offered to give the accuser a ride home. He says that once the two got into his car, they kissed and caressed each other for about 15 minutes. The accuser does not remember doing so, but recalled being affectionate with Sojka and not at all apprehensive about him. He was feeling good about her, and thought the two might have sex.

Their accounts of what happened once they arrived at the woman's apartment are starkly different. It is well to note that this was a classic "he said/she said" case. According to the appellate court: “The evidence concerning the sexual interaction between Sojka and his victim was hotly disputed . . . .” She claimed he raped her despite her protestations.Sojka, on the other hand, testified that the two started kissing, removed each other's clothes and dropped to the floor. He fondled her and performed oral sex on her. She seemed excited, and was moaning a little bit, indicating she was enjoying their foreplay. She did not complain, resist or act like she wanted him to stop. Sojka climbed on top of her to initiate sexual intercourse, but she pushed him and yelled at him to stop. He got up, put his clothes on and left the apartment.

She called her boyfriend and best friend, went to bed, then called 911 shortly after 5:00 a.m. Despite the "he said/she said" nature of the accounts, Sojka was convicted of attempted rape by force and was sentenced to three years in prison.

The appellate court reversed because the jury was misinformed about the law of consent. The court explained that there is no rape if there was substantial evidence of equivocal conduct on the part of the complainant that would have led a defendant to reasonably and in good faith believe consent existed where it did not. If there is such evidence, the jury should be instructed about the law of mistake.

In fact, the prosecution misled the jury to believe that the law was much simpler: the prosecutor told the jury that either she consented or she didn't, and Sojka's belief about whether she did -- regardless of whether his belief was reasonable -- was irrelevant.

The court held that the trial court's failure to instruct on the potential effect of Sojka's good faith but mistaken belief was prejudicial to Sojka, and it reversed the conviction.

The court's holding is merely another way of stating that the accuser's subjective or secret intentions, desires, or whims do not matter if her outward manifestations of assent, even if equivocal, led the defendant to reasonably believe she consented. In other words, "unwanted sex," in and of itself, does not necessarily mean that rape was committed.